Slip Op. 24-46

UNITED STATES 

COURT OF INTERNATIONAL TRADE 

Before: M. Miller Baker, Judge 

OPINION 

[In both cases, the court remands to Commerce for further proceedings.] 

Dated: April 17, 2024 

Court No. 22-00092

GREEN FARMS 

SEAFOOD JOINT 

STOCK COMPANY, 

Plaintiff, 

v. 

UNITED STATES, 

Defendant, 

and 

CATFISH FARMERS 

OF AMERICA and eight 

of its individual 

members, 

Defendant-Intervenors. 

Court No. 22-00125

CATFISH FARMERS 

OF AMERICA and eight 

of its individual 

members, 

Plaintiffs, 

v. 

UNITED STATES, 

Defendant, 

and 

NAM VIET 

CORPORATION, NTSF

SEAFOODS JOINT 

STOCK COMPANY, and 

GREEN FARMS 

SEAFOOD JOINT 

STOCK COMPANY, 

Defendant-Intervenors. 
Ct. Nos. 22-00092, 22-00125 Page 2 

Robert L. LaFrankie, Crowell & Moring LLP of Washington, DC, on the briefs for Green Farms Seafood 

Joint Stock Company. 

Nazak Nikakhtar, Maureen E. Thorson, and Stephanie 

M. Bell, Wiley Rein LLP of Washington, DC, on the 

briefs for Catfish Farmers of America and its members. 

Brian M. Boynton, Principal Deputy Assistant Attorney General; Patricia M. McCarthy, Director; Reginald T. Blades, Jr., Assistant Director; and Kara M. 

Westercamp, Trial Counsel, Commercial Litigation 

Branch, Civil Division, U.S. Department of Justice of 

Washington, DC, on the brief for the United States. Of 

counsel for the United States was Hendricks Valenzuela, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce of 

Washington, DC. 

Robert G. Gosselink and Jonathan M. Freed, Trade Pacific PLLC of Washington, DC, on the brief for NTSF 

Seafoods Joint Stock Company. 

Matthew McConkey, Mayer Brown LLP of Washington, DC, on the brief for Nam Viet Corporation. 

Baker, Judge: These overlapping cases arise out of 

the Department of Commerce’s 17th administrative 

review of its antidumping order on catfish imports 

from Vietnam. In Case 22-92, Green Farms Seafood 

Joint Stock Company—a Vietnamese fish producer 
Ct. Nos. 22-00092, 22-00125 Page 3 

and exporter—argues that its tariff is too high. In Case 

22-125, Catfish Farmers of America and several of its 

constituent members contend that the tariff assigned 

to another exporter—and by extension to Green 

Farms—is too low. The government, caught in a crossfire in this latest skirmish in the enduring Twenty 

Years’ Catfish War, asserts the Department reached 

the Goldilocks solution—just right. For the reasons explained below, the court sends both cases back to the 

agency’s drawing board. 

I 

In 2003, Commerce imposed an antidumping duty 

order on catfish from Vietnam. See Notice of Antidumping Duty Order: Certain Frozen Fish Fillets from 

the Socialist Republic of Vietnam, 68 Fed. Reg. 47,909 

(Dep’t Commerce Aug. 12, 2003). Because Vietnam has 

a nonmarket economy, the order mandated specific 

tariffs on entities that demonstrated independence 

from the government and otherwise applied a single 

country-wide rate. See id. at 47,909–10.1 The order has 

undergone many administrative reviews; the one here 

covered August 1, 2019, through July 31, 2020. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 85 Fed. Reg. 63,081, 63,084–85 

(Dep’t Commerce Oct. 6, 2020). 

1 For the statutory and regulatory background, see Hung 

Vuong Corp. v. United States, 483 F. Supp. 3d 1321, 1334–

41 (CIT 2020) (addressing issues from 14th review). 
Ct. Nos. 22-00092, 22-00125 Page 4 

In that review, Commerce found that three companies demonstrated independence from the Vietnamese 

government and thus were eligible for separate rates: 

NTSF Seafoods Joint Stock Company, East Sea Seafoods Joint Stock Company, and Green Farms. 

Appx1037. All other producers received the countrywide rate of $2.39 per kilogram. Appx1094. 

As mandatory respondents, NTSF and East Sea 

were each individually investigated. Based on a comparison of the former’s reported data to costs of producing fish in India—the surrogate market-economy 

country chosen by Commerce over the objections of 

Catfish Farmers—the Department found that NTSF 

did not dump its catfish in the U.S. market and thus 

assigned the company a zero margin. Appx1093. 

East Sea, on the other hand, ceased cooperating 

with the review after establishing its eligibility for a 

separate rate, prompting Commerce to apply facts otherwise available with an adverse inference. Id. That 

resulted in the agency assigning the company a margin of $3.87 per kilogram. Id. 

Finally, because Green Farms was not individually 

investigated, the Department determined that company’s rate by averaging NTSF’s and East Sea’s margins, even though Green Farms contended that the latter should be excluded from the calculation. 

Appx1069–1070. The consequence was that the agency 

assigned Green Farms a tariff of $1.94 per kilogram. 

Appx1070. 
Ct. Nos. 22-00092, 22-00125 Page 5 

II 

Invoking jurisdiction conferred by 28 U.S.C. 

§ 1581(c), Green Farms and Catfish Farmers both 

sued under 19 U.S.C. §§ 1516a(a)(2)(A)(i)(I) and 

(a)(2)(B)(iii) to challenge Commerce’s final determination. Case 22-92, ECF 9 (complaint); Case 22-125, ECF 

9 (complaint). Each then intervened in the other case 

on the side of the government. Case 22-92, ECF 16; 

Case 22-125, ECF 30. Nam Viet Corporation and 

NTSF also intervened in Catfish Farmers’ case to support the government. Case 22-125, ECF 20, 25. 

After the court consolidated the cases for briefing, 

the plaintiffs moved for judgment on the agency record. Case 22-92, ECF 39; Case 22-125, ECF 49. The 

government opposed, Case 22-92, ECF 44; Case 

22-125, ECF 54, as did the intervenors, Case 22-92, 

ECF 38; Case 22-125, ECF 51. The plaintiffs replied. 

Case 22-92, ECF 40; Case 22-125, ECF 50. The court 

decides the motions on the papers.

In § 1516a(a)(2) actions such as these, “[t]he court 

shall hold unlawful any determination, finding, or conclusion found . . . to be unsupported by substantial evidence on the record, or otherwise not in accordance 

with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). That is, the 

question is not whether the court would have reached 

the same decision on the same record—rather, it is 

whether the administrative record as a whole permits 

Commerce’s conclusion. 
Ct. Nos. 22-00092, 22-00125 Page 6 

Substantial evidence has been defined as more 

than a mere scintilla, as such relevant evidence 

as a reasonable mind might accept as adequate 

to support a conclusion. To determine if substantial evidence exists, we review the record as a 

whole, including evidence that supports as well 

as evidence that fairly detracts from the substantiality of the evidence. 

Nippon Steel Corp. v. United States, 337 F.3d 1373, 

1379 (Fed. Cir. 2003) (cleaned up). 

In addition, the Department’s exercise of discretion 

in § 1516a(a)(2) cases is subject to the default standard 

of the Administrative Procedure Act, which authorizes 

a reviewing court to “set aside agency action, findings, 

and conclusions found to be . . . arbitrary, capricious, 

an abuse of discretion, or otherwise not in accordance 

with law.” 5 U.S.C. § 706(2)(A); see SolarWorld Americas, Inc. v. United States, 962 F.3d 1351, 1359 n.2 

(Fed. Cir. 2020) (explaining that in § 1516a cases 

brought under section 516A of the Tariff Act of 1930, 

APA “section 706 review applies since no law provides 

otherwise”) (citing 28 U.S.C. § 2640(b)). 

III 

In Case 22-92, Green Farms raises two overarching 

issues. First, it challenges Commerce’s determination 
Ct. Nos. 22-00092, 22-00125 Page 7 

that East Sea is eligible for a separate rate.2 Second, 

it asserts that even if East Sea is so eligible, the latter’s adverse-inference tariff should not affect the calculation of Green Farms’s margin. 

A 

Green Farms maintains that the Department’s 

grant of a separate rate to East Sea is both contrary to 

law, ECF 39, at 15–32, and unsupported by sub2 Green Farms assumes that if Commerce denies East Sea 

a separate rate on remand, the Department will then calculate Green Farms’s margin using NTSF’s zero tariff, either alone or in conjunction with calculated separate rates 

in preceding administrative reviews. See ECF 39, at 51–52; 

ECF 40, at 29–31. Catfish Farmers contest this assumption, arguing that in this scenario Commerce would assign 

the country-wide rate of $2.39 per kilogram to East Sea and 

use only that to calculate Green Farms’s tariff. See ECF 38, 

at 22–25. If that’s right, Green Farms would then be worse 

off, as its current margin is only $1.94/kilogram. 

 Because the court reviews, not prophesies, agency action, 

cf. Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 

(2001) (“[T]his is a court of final review and not first view 

. . . .”) (quoting Matsushita Elec. Indus. Co. v. Epstein, 516 

U.S. 367, 399 (1996) (Ginsburg, J., concurring in part and 

dissenting in part)), it need not consider this hypothetical 

question now. If on remand the Department finds East Sea 

ineligible for a separate rate, Commerce can address this 

dispute in the first instance, and any dissatisfied party can 

then seek relief here. 
Ct. Nos. 22-00092, 22-00125 Page 8 

stantial evidence, id. at 33–39. The court considers 

those questions in turn. 

1 

Green Farms contends that Commerce has a “written policy” requiring separate-rate applicants to respond to “‘all parts of the questionnaire as mandatory 

respondents’ to remain eligible for separate rate status.” ECF 39, at 21 (emphasis in original) (quoting 

Appx7674). The company contends that “[t]he policy is 

clear. ‘All’ means ‘all.’ East Sea failed to answer ‘all’ 

parts of the questionnaire it received as a mandatory 

respondent. Therefore, under Commerce’s written policy, it can ‘no longer be eligible for separate rate status.’” Id. (quoting Appx7674). 

The government responds that independence from 

government control is a separate question from analysis of sales and cost data. ECF 44, at 49 (quoting 

Appx1061 and citing Nat’l Nail Corp. v. United States, 

279 F. Supp. 3d 1372, 1377 (CIT 2018)). The court 

agrees. “This Court has consistently held that it is unreasonable for Commerce to impute the unreliability 

of a company’s questionnaire responses and submissions concerning its factors of production and/or U.S. 

sales to its separate-rate responses when there is no 

evidence on the record indicating that the latter were 

false, incomplete, or otherwise deficient.” Yantai Xinke 

Steel Structure Co. v. United States, 36 CIT 1035, 1054 

(2012), superseded by statute on other grounds, Trade 

Preferences Extension Act of 2015, Pub. L. No. 114-27, 
Ct. Nos. 22-00092, 22-00125 Page 9 

§ 502, 129 Stat. 362, 383–84 (2015), as recognized in 

Deosen Biochem. Ltd. v. United States, 307 F. Supp. 3d 

1364, 1372 (CIT 2018). 

Moreover, even if the Department has the policy 

that Green Farms ascribes to it, an agency can deviate 

from its practices if it “show[s] that there are good reasons” for doing so. Huvis Corp. v. United States, 570 

F.3d 1347, 1354 (Fed. Cir. 2009). As the government 

argues, “Commerce provided both notice and explanation for why it granted [East Sea] a separate rate.” 

ECF 44, at 50 (citing Appx1010–1011, Appx1060–

1064). 

The Department reasoned that because the Vietnam-wide margin is lower than the adverse-inference tariff, denying East Sea a separate rate would 

benefit the uncooperative company and allow respondents to manipulate the investigation. Appx1062. The 

agency noted that the Statement of Administrative Action (SAA) accompanying the Uruguay Round Agreements Act3 allows for an adverse inference “to ensure 

that the party does not obtain a more favorable result 

by failing to cooperate than if it had cooperated fully.” 

3 See H.R. Doc. No. 103–316, vol. 1 (1994), reprinted in 1994 

U.S.C.C.A.N. 4040. Congress declared the SAA “an authoritative expression by the United States concerning the interpretation and application of the Uruguay Round Agreements and this Act in any judicial proceeding in which a 

question arises concerning such interpretation or application.” 19 U.S.C. § 3512(d). 
Ct. Nos. 22-00092, 22-00125 Page 10 

Id. (quoting SAA, H.R. Doc. 103–316, at 870). Complying with the SAA and preventing respondents from 

benefiting from a lack of cooperation are valid reasons 

for a change in practice, if that’s what happened here. 

The court therefore rejects Green Farms’s argument 

that Commerce erred as a matter of law in granting 

East Sea a separate rate. 

2 

Green Farms also contends that substantial evidence does not support the Department’s finding that 

East Sea is eligible for a separate rate. ECF 39, at 33–

39. The company advances three arguments. 

First, Green Farms asserts that East Sea’s separate-rate certification was deficient and did not include sufficient information to establish eligibility, 

and it also contends that it was improper in any event 

for East Sea to submit a “certification” instead of the 

longer-form “application.”4 ECF 39, at 33–35. The 

court need not address these points because Commerce did not rely on the certification. Rather, the Department noted that East Sea had also submitted a response to Section A of the mandatory-respondent 

4 The certification is a streamlined renewal form used by 

companies that recently received separate rates, while the 

application is for companies seeking such relief for the first 

time or that lost a separate rate previously received. See

Initiation of Antidumping and Countervailing Duty Administrative Reviews, 85 Fed. Reg. 63,081, 63,082 & n.3 

(Dep’t Commerce Oct. 6, 2020) (explaining process). 
Ct. Nos. 22-00092, 22-00125 Page 11 

questionnaire that, taken together with the material 

submitted in the certification, established eligibility. 

Appx1011; Appx1061; see also Appx1061 n.175 (noting 

Green Farms’s argument and stating that “it was unnecessary to require [East Sea] to remedy this deficiency because Commerce solicited extensive, similar 

information in its Section A questionnaire”). 

Second, the company maintains that the Department disregarded Catfish Farmers’ comments about 

alleged deficiencies in East Sea’s certification. ECF 39, 

at 33–35. Catfish Farmers themselves make no such 

argument, instead urging the court to sustain East 

Sea’s separate rate. The government, meanwhile, 

notes that Catfish Farmers submitted the comments 

in question before Commerce issued its preliminary 

determination. ECF 44, at 53. 

The final determination, in turn, makes clear that 

Catfish Farmers proffered no objection to the Department’s preliminary conclusions. Appx1059–1060. In 

other words, Catfish Farmers abandoned their arguments. After the agency issues its preliminary determination, the parties have 50 days to file case briefs 

that “must present all arguments that continue in the 

submitter’s view to be relevant to the Secretary’s determination or final results, including any arguments 

presented before the date of publication of the preliminary determination or preliminary results.” 19 C.F.R. 

§ 351.309(c)(2). “Both Commerce and reviewing courts 

normally find an argument not presented in a party’s 
Ct. Nos. 22-00092, 22-00125 Page 12 

case brief to be waived unless the argument could not 

have been raised in the case brief.” NTSF Seafoods 

Joint Stock Co. v. United States, Ct. Nos. 20-00104, 20-

00105, Slip Op. 22-38, at 24, 2022 WL 1375140, at *8 

(CIT Apr. 25, 2022). 

Because Catfish Farmers elected not to include 

their pre-preliminary arguments in their case brief, 

Green Farms needed to assert them. It failed to do so; 

instead, it now complains that “Commerce does not 

even mention CFA’s deficiency comments, much less 

consider them.” ECF 39, at 35. But that is what ordinarily happens when a party abandons its arguments: 

The Department reasonably chose not to address Catfish Farmers’ forsaken comments when Green Farms 

declined to adopt them as its own. 

Finally, Green Farms contends that Commerce did 

not “adequately explain[ ] its decision, or how the evidence supports its findings under each of the factors 

relevant to determining the absence of both ‘de jure’ 

and ‘de facto’ control.” Id. at 37. The court agrees. 

In its preliminary determination, the Department 

simply said that East Sea’s evidence “supports a preliminary finding that [it] is eligible for a separate rate” 

and that it “provided an adequate response to Commerce’s questionnaire as it related to the company’s 

independence from the Vietnamese Government and 

separate rate eligibility.” Appx1011. The agency further identified the relevant factors it considers in examining de jure and de facto independence, but in 
Ct. Nos. 22-00092, 22-00125 Page 13 

finding those factors satisfied it merely repeated the 

factors themselves and gave blanket citations to the 

company’s separate-rate certification. Appx1010–1011 

& nn.63, 66.5 Merely reciting the legal standard, without analysis, is not substantial evidence. Ninestar 

Corp. v. United States, Ct. No. 23-00182, Slip Op. 24-

24, at 28, 2024 WL 864369, at *13 (CIT Feb. 27, 2024) 

(citing Dickson v. Sec’y of Def., 68 F.3d 1396, 1405 

(D.C. Cir. 1995) (“When an agency merely parrots the 

language of a statute without providing an account of 

how it reached its results, it has not adequately explained the basis for its decision.”)). 

The final determination, in turn, simply listed the 

broad categories of information East Sea provided and 

then concluded, “We found no basis to determine that 

the separate-rate information submitted was not reliable.” Appx1061. Later, Commerce repeated that East 

Sea “did provide sufficient information necessary to 

determine its independence from the Government of 

Vietnam.” Appx1063. The final determination contained no analysis of its own—rather, it said that the 

Department “continue[d] to find” that East Sea had established a right to a separate rate. Appx1060. But 

Commerce’s preliminary discussion was conclusory. 

In layman’s terms, the Department didn’t show its 

work, and the requirement that it do so is “a ‘basic 

5 The referenced footnotes merely cite “NTSF SRC; ESS 

SRC; and Green Farms SRA.” Neither refers to specific 

pages or material. 
Ct. Nos. 22-00092, 22-00125 Page 14 

principle’ in administrative law that is ‘indispensable 

to sound judicial review.’” Ninestar, Slip Op. 24-24, at 

28, 2024 WL 864369, at *13 (quoting Amerijet Int’l, 

Inc. v. Pistole, 743 F.3d 1343, 1350 (D.C. Cir. 2014)). 

The court therefore remands to provide Commerce 

with the opportunity to “offer a fuller explanation of 

the agency’s reasoning at the time of the agency action.” Dep’t of Homeland Sec. v. Regents of Univ. of 

Cal., 140 S. Ct. 1891, 1907 (2020) (cleaned up). 

B 

Green Farms alternatively asserts that even if 

Commerce properly granted East Sea a separate rate, 

the Department nonetheless erred by using it to calculate Green Farms’s tariff. ECF 39, at 39–53. The company contends that East Sea’s adverse-inference rate 

is not reasonably reflective of economic reality or 

Green Farms’s potential dumping margins. Id. at 39–

43. 

Commerce observed that the statute instructs the 

agency to ordinarily disregard any rates that are zero, 

de minimis, or based entirely on facts available when 

setting a separate rate for companies not individually 

examined, such as Green Farms. Appx1011 (citing 19 

U.S.C. § 1673d(c)(5)(A)).6 Here, however, the tariffs for 

6 Neither the Tariff Act nor Commerce’s regulations address how the Department should establish the separate 

rate for companies not individually examined in an antidumping investigation or administrative review of imports 
Ct. Nos. 22-00092, 22-00125 Page 15 

the only companies individually examined—NTSF’s 

zero margin and East Sea’s adverse-inference rate—

fell within those “disregard” categories. Appx1011. 

The Department noted that in such situations, it “may 

use ‘any reasonable method’ for assigning the rate to 

all other respondents, including ‘averaging the estimated weighted average dumping margins determined for the exporters and producers individually investigated.’” Id. (quoting 19 U.S.C. § 1673d(c)(5)(B)). 

Commerce therefore preliminarily calculated Green 

Farms’s rate by taking the simple average7 of NTSF’s 

and East Sea’s margins. Id.

Green Farms argued that the Department should 

disregard East Sea’s margin in that calculation because the agency’s “normal practice” is to exclude adverse-inference rates. Appx1067. Instead, Green 

Farms urged Commerce to simply assign it NTSF’s 

zero margin. Id. The company also contended that the 

inclusion of an adverse-inference rate meant the 

from a nonmarket-economy country. In such cases, agency 

practice is to use the statutory method for determining an 

“all-others” rate in market-economy cases. See Am. Mfrs. of 

Multilayered Wood Flooring v. United States, Ct. No. 21-

00595, Slip Op. 24-13, at 4 n.3, 2024 WL 489474, at *1 n.3 

(CIT Feb. 8, 2024). 

7 Commerce explained that it used a simple average, rather 

than the weighted average specified in the statute, “because publicly ranged shipment data were not available 

for” East Sea. Appx1069 n.222. No party challenges that 

aspect of the decision. 
Ct. Nos. 22-00092, 22-00125 Page 16 

calculated margin did not “reasonably reflect” its economic reality. Id.

The Department found its methodology consistent 

with the statutory command and noted that the SAA 

states that “the expected method” when all individually examined respondents receive dumping margins 

that are zero, de minimis, or based entirely on facts 

available “will be to weight average the zero and de 

minimis margins and margins determined pursuant to 

facts available, provided that volume data is available.” Appx1069 (emphasis in original). Commerce 

noted that the statute permits the use of other “reasonable methods” if the “expected method is not feasible,” but it found the “expected method”—as modified 

to use a simple average—feasible here. Id. The Department observed that Green Farms cited no evidence to 

show otherwise and further found that relying solely 

on NTSF’s rate would contradict the statutory instruction to use both mandatory respondents’ margins. Id.

Finally, Commerce explained that the margin it assigned—$1.94/kg—“is far more similar to Green 

Farms’ cash deposit rate during the [period of review] 

(i.e., $1.37 per kg) than any of the rates proposed by 

Green Farms,” so the Department found “no basis to 

conclude that the rate calculated in accordance with 

[§ 1673d(c)(5)(B)] is not appropriate.” Appx1070. 

The government and Catfish Farmers convincingly 

argue that Commerce correctly followed the statutory 

command and the SAA by averaging NTSF’s zero rate 
Ct. Nos. 22-00092, 22-00125 Page 17 

and East Sea’s adverse-inference tariff. But that’s not 

the end of the matter. Although the statute and the 

SAA permit Commerce to “use a simple average methodology to calculate the separate rate,” Yangzhou 

Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 

1370, 1378 (Fed. Cir. 2013), “‘it is possible for the application of a particular methodology to be unreasonable in a given case,’” id. (quoting Thai Pineapple Canning Indus. Corp. v. United States, 273 F.3d 1077, 

1085 (Fed. Cir. 2001)). “‘Form should be disregarded 

for substance and the emphasis should be on economic 

reality.’” Id. (brackets omitted) (quoting United States 

v. Eurodif S.A., 555 U.S. 305, 317–18 (2009)). 

Green Farms argues, among other things, that 

Bestpak is “particularly instructive.” ECF 40, at 25. 

The court agrees. In that case, there were likewise two 

mandatory respondents, only one of which cooperated. 

716 F.3d at 1374. Also as here, Commerce calculated 

the margin for a non-investigated separate rate company, Bestpak, by averaging the cooperating respondent’s zero margin with the non-cooperating respondent’s adverse-inference tariff. Id. at 1375. The Federal 

Circuit remanded because the record contained no information tying this rate to “Bestpak’s commercial activity.” Id. at 1380. Assigning Bestpak half of the adverse-inference rate “with no other information [was] 

unjustifiably high and may amount to being punitive, 

which is not permitted by the statute.” Id. at 1379. 
Ct. Nos. 22-00092, 22-00125 Page 18 

Here, the Department’s only record-based justification for assigning Green Farms a margin of $1.94/kg—

half the adverse-inference rate—is its similarity to the 

company’s cash deposit tariff during the period of review. See Appx1070. But as Green Farms argues, its 

cash deposit rate “is irrelevant,” ECF 40, at 33, because “[t]he very point of the . . . review process (and 

separate rate application) is to afford [the company] 

the opportunity to update this cash deposit rate with 

newer and updated data . . . . Otherwise there would 

be no point in participating in [the] review.” Id. The 

court agrees that Commerce’s use of the cash deposit 

rate to justify Green Farms’s margin is “wholly circular and arbitrary.” Id. As in Bestpak, “a review of the 

administrative record reveals a lack of substantial evidence showing that” Green Farms’s tariff “reflects 

economic reality.” 716 F.3d at 1378. 

* * * 

The court grants Green Farms’s motion for judgment on the agency record. On remand, Commerce 

must reconsider East Sea’s eligibility for a separate 

rate. Insofar as the Department reaffirms that determination, it must then reconsider the calculation of 

Green Farms’s margin. 

IV 

In Case 22-125, Catfish Farmers challenge Commerce’s use of India, rather than Indonesia, as the primary surrogate country to calculate NTSF’s rate, and 
Ct. Nos. 22-00092, 22-00125 Page 19 

seek that margin’s recalculation; they relatedly ask 

the court to remand Green Farms’s margin for reconsideration because it was based in part on NTSF’s tariff. See ECF 49, at 10–36.8

Catfish Farmers observe that a case from the 16th 

administrative review involves “a substantively identical challenge to the agency’s economic comparability 

analysis.” ECF 49, at 17. They are correct. Commerce’s 

discussion of India versus Indonesia here repeats its 

analysis in that case9 and another involving the 15th 

review,10 and it is deficient for the same reason as in 

those cases—the Department’s misapplication of the 

statutory standard. 

Despite having invited interested parties “to propose for consideration other countries [not on its ‘surrogate country list’] that are at a level of economic development comparable to Vietnam,” Appx7798 

8 Catfish Farmers’ complaint asserts certain other claims 

in Counts I, II, III, and V, but their motion fails to address 

them. The government invokes waiver, see ECF 54, at 3 

n.2, which Catfish Farmers do not dispute. The court therefore sustains the aspects of Commerce’s decision challenged in those counts. 

9 See Catfish Farmers of Am. v. United States, Ct. No. 21-

00380, Slip Op. 23-97, 2023 WL 4560815 (CIT July 7, 

2023). 

10 See Catfish Farmers of Am. v. United States, Ct. No. 

20-00105, Slip Op. 24-23, 2024 WL 775181 (CIT Feb. 26, 

2024). 
Ct. Nos. 22-00092, 22-00125 Page 20 

(emphasis added), Commerce asserted that it need not 

consider whether the Indonesian data are superior because “Indonesia is not at the same level of economic 

development as Vietnam,” Appx1077 (emphasis 

added). But the Department never considered whether 

Indonesia is at a comparable level, as Catfish Farmers 

contend. That omission invalidates the analysis because, as the court has explained, Commerce may not 

ignore Catfish Farmers’ evidence and argument. See 

NTSF, Slip Op. 22-38, at 39–40, 2022 WL 1375140, at 

*13 (explaining that the finding that India is economically comparable to Vietnam “is irrelevant to 

whether, as Catfish Farmers argued before the Department, Indonesia is also economically comparable”) 

(emphasis in original). 

As the court has now twice before explained, the 

Department’s discretion does not permit it to disregard the statutory “comparable level of economic development” standard. See Slip Op. 23-97, at 16–18, 

2023 WL 4560815, at *6; Slip Op. 24-23, at 5–6, 2024 

WL 775181, at *2 (noting that because the statute requires the use of “comparable” countries, “[a] more demanding rule that excludes [them] is therefore not in 

accordance with law”); see also 19 U.S.C. 

§ 1677b(c)(4)(A) (requiring the use of price or cost data 

from “one or more market economy countries that are 

. . . at a level of economic development comparable to 

that of the nonmarket economy country”) (emphasis 

added). Because Catfish Farmers argue that Indonesia 

is economically comparable to Vietnam, on remand 
Ct. Nos. 22-00092, 22-00125 Page 21 

Commerce must either explain why it disagrees11 or 

else compare the two countries’ data to assess which 

set is superior. Insofar as NTSF’s and (by extension) 

Green Farms’s rates are based on Indian data, Commerce must recalculate them if it selects a different 

primary surrogate country.12

* * * 

The court grants Catfish Farmers’ motion for judgment on the agency record and remands for Commerce 

to examine whether Indonesia is at a level of economic 

development comparable to Vietnam and, if so, to analyze whether India or Indonesia offers superior surrogate data. The court also directs the Department to 

11 The government argues, “Commerce reasonably determined that the record of this review did not demonstrate 

that Indonesia was at a level of economic development comparable to Vietnam, regardless of surrogate country decisions in past segments of this order.” ECF 54, at 30. That 

statement mischaracterizes what the Department did. 

Commerce made no finding about Indonesia’s economic 

comparability to Vietnam—instead, the agency simply 

claimed that because the former country is not on the “surrogate country list,” it is not at the same level, without reference to whether it might still be comparable. Appx1077; 

cf. Slip Op. 24-23, at 5, 2024 WL 775181, at *2 (noting that 

“comparable” is “broader” than “same” because “it includes 

the merely similar as well as the identical”). 

12 While Catfish Farmers raise other challenges to specific 

aspects of the Indian data Commerce used, it is unnecessary to address them in view of the court’s direction that 

the Department reconsider its surrogate country selection. 
Ct. Nos. 22-00092, 22-00125 Page 22 

reconsider NTSF’s tariff because it is based on Indian 

data. If that reconsideration results in a change to that 

company’s margin, Commerce must then reconsider 

Green Farms’s rate. 

Dated: April 17, 2024 /s/ M. Miller Baker

New York, NY M. Miller Baker, Judge